The Court of Appeal has warned judges not to ‘cut and paste’ their rulings from submissions made by one party to a case, with Lord Justice Underhill saying it was “thoroughly bad practice”.
The appeal in Crinion & Anor v IG Markets Ltd  EWCA Civ 587  was founded purely on the fact that HHJ Simon Brown QC in Birmingham Mercantile Court had used the closing submission from the claimant’s counsel, Stewart Chirnside, as the basis for his ruling.
The appellants calculated that, ignoring a passage on the evaluation of evidence, some 94% of the words of the judgment represented Mr Chirnside’s drafting. It said this created the impression that the judge had abdicated his core judicial responsibility to think through for himself the issues which it was his job to decide, and that he had simply slavishly adopted Mr Chirnside’s arguments as his own.
At the hand-down hearing, the Court of Appeal recounted, “the judge said, in effect, that he had adopted Mr Chirnside’s submissions because he had on his own proper and independent consideration come to the conclusion that they were correct”.
Underhill LJ said: “Appearances matter. For the judge to rely as heavily as he did on Mr Chirnside’s written submissions did indeed risk giving the impression that he had not performed his task of considering both parties’ cases independently and even-handedly.
“I accept, of course, that a judge will often derive great assistance from counsel’s written submissions, and there is nothing inherently wrong in his making extensive use of them, with proper acknowledgement, whether in setting out the facts or in analysing the issues or the applicable legal principles or indeed in the actual dispositive reasoning.
“But where that occurs the judge should take care to make it clear that he or she has fully considered such contrary submissions as have been made and has brought their own independent judgment to bear.
“The more extensive the reliance on material supplied by only one party, the greater the risk that the judge will in fact fail to do justice to the other party’s case – and in any event that that will appear to have been the case.”
Nonetheless, he concluded, “not without some hesitation”, that the judgment showed on close examination “that the judge performed his essential judicial role and that his reasons for deciding the dispositive issues in the way that he did are sufficiently apparent”.
The other two judges in the appeal court agreed to dismiss the appeal but were equally censorious about what had happened. Sir Stephen Sedley said IT has made it “seductively easy to do what the judge did in this case. It has also made it embarrassingly easy to demonstrate what he has done”.
He continued: “In principle, no doubt, it differs little from the modus operandi of the occasional judge, familiar to an earlier generation of counsel, who would pick up his pen (sometimes for the first time) and require the favoured advocate to address him at dictation speed.
“But in practice, for reasons which Lord Justice Underhill has described, the possibility of something approaching electronic plagiarism is new, and it needs to be said and understood that it is unacceptable. Even if it reflects no more than the judge’s true thinking, it reflects poorly on the administration of justice: for, as Lord Justice Underhill says, appearances matter… I hope that a judgment like the one now before us will not be encountered again.”
Lord Justice Longmore added: “In these days of written final submissions and computer literacy, it must be tempting for a judge who has formed a clear view of a primarily factual dispute to frame his judgment by lifting large parts of the written submissions of the party he has decided should win and incorporating them in his judgment.
“But to do so without (or with only minimal) acknowledgment and without making reference to the submissions made by the other side inevitably leaves a deep sense of grievance with the losing party. He or she will understandably feel that the judge has never properly engaged with the case when forming his judgment…
“We trust that no judge in any future case will lift so much of a claimant’s submissions into his own judgment as this judge has done and that, if substantial portions are to be lifted, it will be with proper acknowledgment and with a recitation of the defendant’s case together with a reasoned rejection of it.
“It is only in that way that unnecessary appeals can be avoided and the litigant be satisfied that he has received the justice that is his due.”